Citation Nr: 9832939
Decision Date: 11/05/98 Archive Date: 11/17/98
DOCKET NO. 98-01 552A ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for narcolepsy.
2. Entitlement to service connection for a seizure disorder.
3. Entitlement to an increased evaluation for a low back
strain, currently evaluated as 20 percent disabling.
4. Entitlement to a total rating based upon individual
unemployability due to service-connected disabilities.
REPRESENTATION
Appellant represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
Amy E. Balbach, Associate Counsel
INTRODUCTION
The veteran served on active duty from October 1974 to
February 1977.
This appeal arises from a May 1997 rating decision from the
Montgomery, Alabama, Regional Office (RO), in which service
connection for narcolepsy and a seizure disorder was denied.
The RO also denied entitlement to an increased evaluation for
a low back disorder with a history of conversion reaction and
entitlement to a total rating based upon individual
unemployability due to service-connected disabilities in such
decision. The increased rating and total rating claims, as
well as the claim for service connection for a seizure
disorder, are discussed in the remand portion below.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that his currently diagnosed narcolepsy
had its origins in service. The veteran also contends that
his narcolepsy is related to injuries from a fall in service.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence is in equipoise
and supports a grant of service connection for narcolepsy.
The issues of service connection for a seizure disorder and
an increased rating for a low back strain are the subject of
the remand portion of this appeal. The issue of entitlement
to a total rating based on individual unemployability is
deferred pending the additionally requested development, as
well as action taken pending the grant of service connection
for narcolepsy.
FINDING OF FACT
Currently shown narcolepsy is reasonably shown to be related
to symptoms first demonstrated in active service.
CONCLUSION OF LAW
Narcolepsy was incurred in active service. 38 U.S.C.A.
§§ 1110, 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Initially, we find that the appellant’s claim of entitlement
to service connection for narcolepsy is plausible, or well-
grounded, within the meaning of 38 U.S.C.A. § 5107(a) (West
1991). The relevant facts have been properly developed, and,
accordingly, the statutory obligation of the Department of
Veterans Affairs (VA) to assist in the development of the
appellant’s claim has been satisfied. 38 U.S.C.A. § 5107(a)
(West 1991).
Service connection may be established for disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R.
§ 3.303 (1995).
Service medical records included an October 1974 enlistment
examination which revealed a normal clinical evaluation.
Service treatment records dated in April 1975 showed that the
veteran was referred to the clinic by an officer because the
veteran was not staying awake. Physical examination revealed
a normal clinical evaluation and an impression of “no
disease, will have to suspect malingering” was rendered.
Service medical records showed that the veteran injured his
lower back after a fall from a ladder in July 1975. Service
treatment records dated in July 1975 revealed complaints that
back pain medication was making him sleepy.
A narrative summary for a period of hospitalization dating
from March 1976 to April 1976 for recurrent lower back pain,
noted that the veteran slept most of the time, and as a
result a psychiatric examination was conducted which rendered
a diagnosis of conversion reaction. In December 1976, a
physical evaluation board proceeding listed low back pain and
a conversion reaction as diagnoses rendering the veteran
unfit for duty. Findings relating to narcolepsy, were not
listed at such time.
A June 1977 VA neuropsychiatric examination revealed no
complaints or findings relating to narcolepsy or a sleep
disorder. A May 1977 VA general medical examination also
revealed no findings relating to narcolepsy or a sleep
disorder.
Private treatment records dated in July 1983 revealed that
the veteran was treated for injuries resulting from a motor
vehicle accident. A history of two similar motor vehicle
accidents was noted, and as such, a neurological examination
was conducted. Results of testing, including
hyperventilation and sleep deprivation studies were normal,
and no neurological deficits were otherwise found.
VA clinical records dated in 1989 included a consultation
which provided a provisional diagnosis of sleep apnea.
Records indicated a typical history of sleep apnea, noted
complaints of difficulty breathing through the nose, and
revealed that a septoplasty was considered. VA records dated
in May 1990 showed that results of certain tests were
suggestive of narcolepsy and that the veteran has received no
treatment for this condition.
A private evaluation conducted at the University of Alabama’s
school of medicine, sleep-wake disorders center, provided a
possible diagnosis of narcolepsy and sleep apnea in January
1990. The extensive evaluation further revealed EEG results
which were noted to have raised the question of whether the
veteran also suffers from a partial seizure disorder.
An April 1994 VA examination revealed an evaluation of an
unrelated condition. VA clinical records dated in April
1997, listed complaints of seizures and listed an impression
of narcolepsy versus seizure versus sleep apnea. It was
noted that neurology and sleep records were requested. A
letter from the veteran’s VA physician revealed the opinion
that the veteran has narcolepsy which is poorly controlled
and causes the veteran to lose consciousness at anytime. VA
clinical records dated in March 1997 also provided a possible
diagnosis of narcolepsy and possible diagnosis of a seizure
disorder.
VA clinical records dated in May 1997 included an opinion
from the veteran’s treating physician at the VA medical
center that the veteran suffers from narcolepsy which first
manifested in 1975 following a fall. The physician indicated
that he reviewed the veteran’s service medical records and
specifically noted that complaints of sleepiness in 1976 were
probably manifestations of narcolepsy to which a diagnosis of
conversion reaction was given. The record provided a
diagnosis of narcolepsy, service-connected. The VA physician
further reiterated that although the veteran’s claim has been
denied, his review of the service medical records revealed
that the veteran was complaining of symptoms as early as
1976.
VA outpatient treatment records dated in 1998 revealed
continuing treatment for narcolepsy and seizures.
A May 1998 lay statement from a veteran who served with the
claimant revealed the assertion that the veteran suffered
from “black out spells” while on duty and off duty. The
lay statement revealed the assertion that the veteran’s
officer initially thought the veteran was malingering, but it
was apparent to those serving on the ship with him that he
had significant problems staying awake.
It is the defined and consistently applied policy of the VA
to administer the law under a broad interpretation;
consistent with the facts shown in every case. When, after
careful consideration of all the probative evidence, a
reasonable doubt arises regarding service origin, such doubt
will be resolved in favor of the appellant. 38 C.F.R.
§ 5107(b). While the service medical records do not include
a diagnosis of narcolepsy, complaints of sleepiness are
nonetheless documented in the service medical records. Such
documentation corroborates, in practical effect, the lay
testimony presented by a fellow serviceman that the veteran
suffered from what were characterized as black out spells.
Moreover, a VA physician who has reviewed the veteran’s
service medical records has provided competent medical
evidence which serves to link the veteran’s currently
diagnosed narcolepsy to initial symptoms in service. This
evidentiary item is found to be of significant probative
value.
The May 1998 lay statement as well as VA outpatient treatment
records dated in 1998 were submitted directly to the Board
after the veteran’s appeal was certified to the Board. Under
the Board's rules of practice, "[a]ny pertinent evidence
submitted by the appellant...which is accepted by the
Board...must be referred to the agency of original
jurisdiction for review and preparation of a Supplemental
Statement of the Case unless this procedural right is waived
. . .or unless the Board determines that the benefit sought
on appeal may be allowed on appeal without such referral."
38 C.F.R. § 20.1304(c). Such is the case with regard to this
issue.
The Board finds that, in weighing all reasonable doubt in
favor of the veteran, the evidence is in equipoise as to
whether the veteran incurred narcolepsy while in service.
The Board further finds that a reasonable basis exists for a
finding that narcolepsy had its origins in service, and as a
result, remanding this matter for further development would
not be in the best interests of the veteran. It is felt that
to conclude otherwise would not withstand Court scrutiny.
Hence, the evidence supports a grant of service connection
for narcolepsy.
ORDER
Service connection for narcolepsy is granted.
REMAND
The Board observes that the additional evidence submitted is
pertinent to the claim for service connection for a seizure
disorder as it includes recent VA outpatient treatment
records which reveal evaluation and treatment of a possible
seizure disorder.
The record does not reflect that this additional evidence has
been considered by the RO, nor that waiver by the veteran of
prior such consideration has been accomplished. The Board
regrets the delay associated with this Remand, but recognizes
that the mandate of 38 C.F.R. § 20.1304 is not optional.
Under the Board's rules of practice, "[a]ny pertinent
evidence submitted by the appellant...which is accepted by
the Board...must be referred to the agency of original
jurisdiction for review and preparation of a Supplemental
Statement of the Case unless this procedural right is
waived...." 38 C.F.R. § 20.1304(c).
Moreover, VA has a duty to assist the appellant in the
development of facts pertinent to his claims. 38 U.S.C.A.
§ 5107(a) (West 1991). The United States Court of Veterans
Appeals (Court) has held that the VA’s duty to assist the
appellant in obtaining and developing available facts and
evidence to support his claim includes obtaining adequate VA
medical examinations. Littke v. Derwinski, 1 Vet.App. 90
(1990).
The veteran has contended that disability associated with his
back has increased in severity since his last VA examination
and the record reflects that the veteran was treated for back
pain as recently as April 1998; however, the veteran has not
been afforded a VA examination since 1994, at which time the
veteran reported complaints of back pain with all movements.
Therefore, it is felt that such a current, updated,
comprehensive examination would be appropriate. Colvin v.
Derwinski, 1 Vet.App. 171 (1991).
The current evidence of record does not document that the RO
has considered the provisions of 38 C.F.R. §§ 4.40, 4.45,
4.59 (1997), pertaining to the various elements of functional
impairment. Joints involved in painful motion should be
tested for pain on both active and passive motion. 38 C.F.R.
§ 4.59 (1997). See, Arnesen v. Brown, 8 Vet.App. 432 (1995).
Also, a disability rating may be based on weakened movement,
excess fatigability, incoordination, and pain on movement, in
addition to limitation of motion. 38 C.F.R. §§ 4.40 and 4.55
(1995). See also, DeLuca v. Brown, 6 Vet.App. 321, 324
(1993).
While the Board regrets the delay involved in remanding this
case, a decision on the merits at this time would not, it is
felt, withstand Court scrutiny. Therefore, to ensure that
the Department of Veterans Affairs (VA) has met its duty to
assist the claimant in developing the facts pertinent to the
claim and to ensure full compliance with due process
requirements, the case is remanded to the RO for the
following action:
1. The RO should notify the veteran that
he may submit additional evidence in
support of his claim.
2. Thereafter, the veteran should be
scheduled for a VA orthopedic examination
to determine the current nature and
severity of the veteran’s low back
disability. All indicated studies should
be accomplished and clinical findings
should be recorded in detail as would be
appropriate for rating purposes. The
examiner should also comment on the
degree of impairment of function due to
pain that is supported by objective
clinical findings. The examination
should report evidence of painful motion
and both active and passive ranges of
motion and the respective normal ranges
of motion of the back.
The claims folder should be made
available to the examiner for review
before the examination.
3. After the development requested above
has been completed to the extent
possible, the RO should again review the
record, to include consideration of
38 C.F.R. § 4.40, 4.45, and 4.59 (1998).
If the benefit sought on appeal remains
denied, the appellant and his
representative should be furnished a
supplemental statement of the case which
summarizes the aforementioned evidence,
and be given the applicable opportunity
to respond. Thereafter, the case should
be returned to the Board, if otherwise in
order.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JEFF MARTIN
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans’
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans’ Judicial Review Act, Pub.
L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date
that appears on the face of this decision constitutes the
date of mailing and the copy of this decision that you have
received is your notice of the action taken on your appeal by
the Board of Veterans’ Appeals. Appellate rights do not
attach to those issues addressed in the remand portion of the
Board’s decision, because a remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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